546US1
Unit: $U17
[08-22-08 15:50:12] PAGES PGT: OPIN
Cite as: 546 U. S. 212 (2006)
235
Breyer, J., dissenting
cause many States collapse Stage One (eligibility) and Stage Two (sentence selection) into a single proceeding in which the jury hears all of the evidence at the same time, those States permit the prosecution to introduce and argue any relevant evidence, including evidence related to the statutory aggravators. Indeed, one State the Court has characterized as a weighing State (Mississippi) and one State the Court has characterized as a nonweighing State (Virginia) both fall into this intermediate category. Miss. Code Ann. § 99–19– 101 (1973–2000); Va. Code Ann. § 19.2–264.4(B) (Lexis 2004). Efforts to classify these varied schemes, for purposes of applying harmless-error analysis, produce much legal heat while casting little light. C Our precedents, read in detail, do not require us to main tain this unrealistic and impractical distinction. The Court has discussed the matter in three key cases. In the first case, Zant v. Stephens, the Court considered an error that arose in Georgia, a nonweighing State. The Georgia Su preme Court had held that one of several statutory aggravat ing circumstances found by the jury—that the defendant had a “ ‘substantial history of serious assaultive criminal convic tions’ ”—was unconstitutionally vague. 462 U. S., at 867, and n. 5. The jury, however, had also found other aggrava tors present, so the defendant remained eligible for death. The Georgia Supreme Court concluded that the sentencing court’s instruction on the unconstitutional factor, though er roneous, “had ‘an inconsequential impact on the jury’s deci sion regarding the death penalty.’ ” Id., at 889 (quoting Zant v. Stephens, 250 Ga. 97, 100, 297 S. E. 2d 1, 4 (1982)). This Court agreed with the Georgia Supreme Court’s con clusion. The Court conceded that the label—“aggravating circumstance”—created the risk that the jury might place too much weight on the evidence that showed that aggrava tor. Indeed, it said that the statutory label “ ‘aggravating circumstance[s]’ ” might “arguably . . . have caused the jury
